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Poster: jory2 Date: Nov 9, 2011 5:25pm
Forum: web Subject: Re: Parked domain’s robots.txt disallows viewing of past content.

§ 108 · Limitations on exclusive rights:
Reproduction by libraries and archives .41
(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if—
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if— (1) the copy or phonorecord reproduced is currently in the collections of
the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if— (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
****(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.


To the best of my knowledge the Internet Archive:
copies websites without the owners knowledge or consent, copies the content on the websites without the owners knowledge or consent; I think it fair to say the Internet Archive does not "lawfully" acquire the content they make part of their "collections", and then the Internet Archive publishes the content they copied in digital form on their own website to be made available to the World Wide Web.

Because the Internet Archive is legally considered a Website and not a Library, it's only defense in a court case for copyright infringements would be one of "fair-use".

By Alyssa N. Knutson
"Digital archives do not fall under the section 108 library exception. First, the exception does not apply to material the library or archive does not own. Second, under section 108 a library cannot distribute digital copies or make them available to patrons outside the library premises.
Furthermore, although the DMCA allows for the digital preservation of copy-righted works, it states that pure digital libraries and archives that exist only on the Internet are not part of the library exception. The legislative history clearly shows congressional intent not to extend the library exception to libraries and archives existing wholly on the Internet.

The Senate Judiciary Committee stated:
Although online interactive digital networks have since given birth to online digital ‘libraries’ and ‘archives’ that exist only in the visual (rather than physical) sense on websites, bulletin board and homepages across the Internet, it is not the Committee’s intent that [17 U.S.C. § 108] as revised apply to such collections of information. The ease with which such sites are established on-line literally allows anyone to create his or her own digital ‘library’ or ‘archives.’ The extension of the application of section 108 to all such sites would be tantamount to creating an exception to the exclusive rights of copyright holders that would permit any person who has an online website, bulletin board or a homepage to freely reproduce and distribute copyrighted works. Such an exemption would swallow the general rule and severely impair the copyright owners’ right and ability to commercially exploit their copyrighted works."


I personally had to contact this website to have hundreds of copies of the same digital photograph(s) removed from this website. Not one or two copies, but hundreds of wholesale copies that were not at all transformative (as required) but exact copies of my copyright protected intellectual property.
Along with the copyright infringements, the photo's were not of trees or apples but of people, identifiable people who absolutely have their Rights to Privacy and unwanted Publicity.
Fair use?


Privacy and Publicity Rights

Privacy and publicity rights reflect separate and distinct interests from copyright interests. Patrons desiring to use materials from this website bear the responsibility of making individualized determinations as to whether privacy and publicity rights are implicated by the nature of the materials and how they use such materials.

While copyright protects the copyright holder's property rights in the work or intellectual creation, privacy and publicity rights protect the interests of the person(s) who may be the subject(s) of the work or intellectual creation. Issues pertaining to privacy and publicity may arise when a researcher contemplates the use of letters, diary entries, photographs or reportage in visual, audio, and print formats found in library collections. Because two or more people are often involved in the work (e.g., photographer and subject, interviewer and interviewee) and because of the ease with which various media in digital format can be reused, photographs, audio files, and motion pictures represent materials in which issues of privacy and publicity emerge with some frequency.

The distinctions among privacy rights, publicity rights, and copyright are best illustrated by example: An advertiser wishes to use a photograph for a print advertisement. The advertiser approaches the photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The advertiser also is required to determine the relationship between the photographer and the subject of the photograph. If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to license the use of the photograph for all uses or otherwise waives the subject's, sitter's or model's rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.

While copyright is a federally protected right under the United States Copyright Act, with statutorily described fair use defenses against charges of copyright infringement, neither privacy nor publicity rights are the subject of federal law. Note also that while fair use is a defense to copyright infringement, fair use is not a defense to claims of violation of privacy or publicity rights. Privacy and publicity rights are the subject of state laws. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person's identity in order to create a false endorsement.

While an individual's right to privacy generally ends when the individual dies, publicity rights associated with the commercial value connected with an individual's name, image or voice may continue. For example, many estates or representatives of famous authors, musicians, actors, photographers, politicians, sports figures, celebrities, and other public figures continue to control and license the uses of those figures' names, likenesses, etc.

Although the risks for using an image in a periodical's "editorial" pages may be less than for use in advertising or for other commercial purposes, the risk can still be high if the person depicted is held up to ridicule or presented in a libelous manner. While it is true that famous or public figures who seek recognition have thereby surrendered some privacy, they may have the right to control the commercial use of their image (likeness, voice, signature, etc.). This principle recognizes that a celebrity's image can be an asset in trade.


Here's a link to a EFF's project website:, that explains in simple detail what's important to know about Copyright laws and "Fair-use":


I think this answers some of your question(s)?

This post was modified by jory2 on 2011-11-10 01:25:41